[2007] KEHC 3690 (KLR)

[2007] KEHC 3690 (KLR)

The court held that the Minister for Local Government does not have the power to revoke the nomination of a councillor who has been nominated by a parliamentary party under Section 33 of the Constitution, as incorporated into the Local Government Act by Section 28(2A). The Constitution is the supreme law, and where there is inconsistency between the Constitution and a statute, the Constitution prevails. Section 40(1) of the Local Government Act, to the extent that it purports to allow the Minister to revoke such nominations without reference to the nominating parliamentary party and the Electoral Commission, is inconsistent with Section 33 of the Constitution and is therefore void. The...

Citation
[2007] KEHC 3690 (KLR)
Parties
Applicant: Republic; Respondent: Hon. Musikari Kombo for Local Government; Respondent: Attorney General; Respondent: Murang’a County Council; Interested Party: Electoral Commission of Kenya; Applicant: James Mwangi Waweru; Interested Party: Wilson Kinyua Giteru
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
4 May 2007
Case Number
? 1648 of 2005
Procedural Posture
Miscellaneous Application / Judgment
Outcome
application allowed
Legal Topics
Judicial Review, Prerogative Orders, Local Government Appointments, Constitutional Supremacy, Statutory Interpretation
Source Language
English
Administrative Law Constitutional Law Judicial Review Prerogative Orders Local Government Appointments Constitutional Supremacy Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

Republic

Applicant

Hon. Musikari Kombo for Local Government

Respondent

Attorney General

Respondent

Murang’a County Council

Respondent

Electoral Commission of Kenya

Interested Party

James Mwangi Waweru

Applicant

Wilson Kinyua Giteru

Interested Party

Procedural Posture

Miscellaneous Application / Judgment

Legal Issues

  1. 1 Whether the Minister for Local Government has the power to revoke the nomination of a councillor appointed by a parliamentary party under Section 33 of the Constitution.
  2. 2 Whether Section 40(1) of the Local Government Act is inconsistent with Section 33 of the Constitution regarding revocation of nominated councillors.
  3. 3 Whether the Minister acted ultra vires in revoking the applicant's nomination and appointing another person.

Ratio Decidendi

The court held that the Minister for Local Government does not have the power to revoke the nomination of a councillor who has been nominated by a parliamentary party under Section 33 of the Constitution, as incorporated into the Local Government Act by Section 28(2A). The Constitution is the supreme law, and where there is inconsistency between the Constitution and a statute, the Constitution prevails. Section 40(1) of the Local Government Act, to the extent that it purports to allow the Minister to revoke such nominations without reference to the nominating parliamentary party and the Electoral Commission, is inconsistent with Section 33 of the Constitution and is therefore void. The...

Court Disposition

application allowed

Orders

  • An order of certiorari is issued quashing the decision of the Minister for Local Government contained in Kenya Gazette Notice No. 8573 revoking the nomination of James Mwangi Waweru as nominated councillor of Murang’a County Council.
  • An order of certiorari is issued quashing the decision of the Minister for Local Government contained in Kenya Gazette Notice No. 8574 appointing Wilson Kinyua Giteru as nominated councillor of Murang’a County Council.